Once again, the First DCA had the opportunity to review an E/C’s right to compel an IME (without a pending Petition) and once again the Court practices form over substance.

In Bellamy v. Golden Flake Snack Foods, Inc., Claimant sought review of a Judge’s order compelling her to attend E/C’s IME. There were no pending Petitions so the E/C filed a motion to compel for their IME.

In the motion, the E/C was very specific in its reasons for the IME; namely, they disputed the impairment rating set by the authorized doctors and overall disability. The Judge granted the motion and the Claimant appealed.

The First DCA relied upon the Lehoullier v. Gevity case in reversing the order compelling the IME. The Court found there was no “dispute” between the parties and that the E/C must “create” the dispute:

“To create a dispute concerning medical benefits, an E/C is required to deny a claimant’s request for medical benefits. Simply expressing unilateral speculative concerns over a claimant’s progress with an authorized physician is insufficient.”

I still don’t understand the rationale behind this. The only reason for a Petition is for the Claimant attorney to secure a future fee. If the E/C does not like the opinion of the authorized doctors then a “dispute” has occurred. If Claimant can obtain a pre-Petition IME, why can’t the E/C.

Instead the Court requires the E/C to “create” the dispute. It seems completely inefficient and counterintuitive to the purpose of chapter 440 to force the E/C to deny the care, have Claimant file a Petition, and then have the E/C file a Response to that Petition.

This may be a solution only the Legislature can devise, but I would think this just perpetuates continued litigation. A dispute can be a ”unilateral” concern. A dispute is not always a two way street. And, if the E/C suspects that a doctor is over utilizing or Claimant is not making appropriate progress, how else is the E/C going to find out? Cutting of a Claimant just to get a PFB and then issue a denial is not exactly efficient or practical.

Many E/C’s assume that once you retain an independent medical examiner, their opinion will automatically favor them. You are “buying” an opinion, right? Wrong. Just because you pay for the services of an expert does not mean that expert will snap to and be a puppet for your defense.

IME doctors can still sink you and disagree with the legal position you are taking. Therefore, it is always a risk to retain an IME because there is always a chance it can go bad for you.

And if it does go bad, what are your options? Many of us in the profession thought you were sunk. After all, section 440.13(5)(b) mandates that your are bound by your IME selection. Now, it seems that a party still has some life left even when their own IME shoots them in the foot.

Well, according to a new First DCA case, belly aching is fraud if Claimant does the belly aching to the Employer/Carrier’s IME. Be sure to print this one out as it is very favorable to E/C’s and will be useful when preparing your IME’s in the future.

Just last week, I wrote about the First DCA oral arguments, presented at the annual FWCI Convention in Orlando. Specifically, I focused on the McGraw oral arguments.

McGraw dealt with an E/C wanting an IME without Claimant filing a PFB. I predicted (or rather hoped) that the Court would rule that an E/C could seek an IME before the filing of a PFB. This would solve the wink-wink dance that E/C’s have to do to initiate an IME:

“And there is a kabuki style dance we as E/C’s must perform to get our IME if there is no pending PFB. The most common–and safe–way to do this is the claims professional sends the file to a peer review doctor (usually out of state) and he determines that there is no medically necessity to the treatment the authorized physician recommends or there is over utilization. This peer review report is not exactly admissible since it is not an authorized doctor.

From there, the E/C denies treatment based on the peer review report. Then, Claimant files a PFB for benefits. And, then the E/C can seek an IME. It all seems pointless, doesn’t it?”

I hoped for a better procedure, where the E/C can obtain an IME whenever it disagrees with a doctor’s opinion (like Claimants can) thereby preventing the procedure where Claimant must be cut off. This tactic would reduce litigation, promote settlement, and at the very least put injured workers on notice of any potential disruption in their benefits.

Now, the First DCA ruled, in a case other than McGraw, that cutting a Claimant off is the only way an E/C can get an IME.

For a Comp nerd like me, the First DCA oral arguments is my second favorite part of the Convention, right behind Case Law Update. For many practitioners, adjuster, and employers oral arguments are the best opportunity to see how chapter 440 is interpreted and shaped.

Tallahassee is a far drive for many of us, so whenever the First DCA goes on the road and opens their docket at the Convention, it is a delight. As is every year, the Convention hosted two cases heard in front of two panels of judges. I want to focus on the first one, McGraw v. Sauer, Inc., 1D10-791, and what effect it may have on an E/C’s right to seek an IME. (more…)

When the 2003 changes came into effect, many people looked at the fee provision as the biggest change. But, in terms of everyday practice in Workers’ Compensation, the change to the IME provision had a profound effect.

“In any dispute concerning overutilization, medical benefits, compensability, or disability under this chapter, the carrier or the employee may select an independent medical examiner. The employer and employee shall be entitled to only one independent medical examination per accident and not one independent medical examination per medical specialty.”

While the intent of Legislature is clear–one IME per specialty only–the intent of whether a party could have just one IME examination per claim was left in doubt. Many judges allowed “updated” IME’s upon motion of a party, if it was with the same doctor, especially when it had been years since the last IME. However, the new(er) language of 440.15 is clear: “entitled to one independent examination per accident”.

Therefore, many judges would deny updated IME’s for this very reason. Until now. . . (more…)